Circular 2014/2 - Amendments to the Australian Public Service Code of Conduct

Last updated: 27 Jun 2014

This page is: archived

This circular is to advise agencies of amendments to the Australian Public Service (APS) Code of Conduct (the Code) that will come into effect on 1 July 2014.

Why are these changes being made?

In 2013, Parliament passed the Public Governance, Performance and Accountability Act 2013 (the PGPA Act) which comes into effect on 1 July 2014. The PGPA Act sets out in sections 25 to 29 general duties of officials that concern the following:

a duty to act with care and diligence

a duty to act honestly, in good faith and for a proper purpose

duties concerning the use of position and information

a duty to disclose interests.

These duties are similar to elements of the Code (section 13 of the Public Service Act 1999). To ensure consistency and align with the PGPA Act in respect of the management of Commonwealth resources, minor amendments to the Code have been made through the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 which was passed by the Parliament on 26 June 2014.

What changes are being made?

Changes in summary

Subsections 13(7), (8) and (10) of the Public Service Act are being amended. Attachment A sets out the changes and compares them with previous provisions.

To ensure the best alignment between the Code and the duties of officials in the PGPA Act, minor amendments have also been made to the duties of officials in the PGPA Act through the Public Governance, Performance and Accountability Amendment Act 2014 which was passed by the Parliament on 19 June 2014.

Changes in detail

Subsection 13(7)

Subsection 13(7) outlines the responsibility of APS employees and Agency Heads to manage conflicts of interest. The amendment made to harmonise this provision with the terms of section 29 of the PGPA Act introduces the new concept of ‘material personal interest’ in connection with an employee's employment.

However, the amended provision will not alter the current obligations of APS employees and Agency Heads. To be ‘material’, the personal interest of the employee must be of a type that can give rise to a conflict of interest or a perception of a conflict of interest. On the other hand, if there is no potential for the interest to give rise to a conflict of interest, real or perceived, in an employee's duties, then an employee's interest will not be ‘material’.

A material personal interest, or a conflict of interest, can arise out of a work, private or social context. It might arise through private share holdings, acceptance of gifts, hospitality, personal interests or political activity. It can also arise through outside activities, whether they are paid or not.

As is currently the case, APS employees must take reasonable steps to avoid a conflict of interest (real or apparent). Material personal interests will need to be disclosed and failing to disclose either a material personal interest or to avoid a conflict of interest could be considered to be a breach of the Code.

Subsection 13(8)

Subsection 13(8) of the Code which deals with using Commonwealth resources in a proper manner will be amended to include the phrase ‘and for a proper purpose’. This harmonises with section 26 of the PGPA Act. Given the existing obligations under the Code to act ethically, honestly, and with integrity, the amendment does not add any new obligation for APS employees.

Subsection 13(10)

Subsection 13 (10) will be recast to align with sections 27 and 28 (as amended) of the PGPA Act.

The improper use has to be for the purpose of gaining or seeking to gain a benefit or advantage, or causing, or seeking to cause, a detriment, for someone. Whether or not a benefit or detriment actually results is not relevant to the question of whether the subsection is breached; if it was used with that end in mind, the subsection is breached.

Given the existing obligations under the Code to act ethically and with integrity, the amendment proscribing behaviour intended to cause a detriment to a person, the employee's agency, or the Commonwealth does not add any new obligation for APS employees.

Transitional matters

For the purposes of subsection 13(7) of the Public Service Act, the obligations to disclose a material personal interest, and to take reasonable steps to avoid any real or apparent conflict of interest, will apply regardless of whether that interest, or that conflict of interest, arose before or after commencement.

For the purposes of subsection 13(8) of the Public Service Act, the obligation to use Commonwealth resources for a proper purpose applies to uses of resources after commencement.

The amendments to section 13(10) of the Public Service Act, apply to:

uses by APS employees occurring after commencement of information obtained before and after commencement; and

uses by APS employees of their duties, status, power or authority after commencement.

Whether an employee has breached the Code or not will be determined having regard to the requirements of the Code at the time of the suspected act of misconduct.

What do agencies need to do?

Agencies should review their procedures, instructions, policies or guidance that refer to the amended elements of the Code and amend those documents as appropriate to reflect the changes to the Public Service Act.

Agencies are also advised to bring the transitional matters to the attention of persons investigating suspected breaches of the Code occurring over the relevant period.

Further information

The Public Governance, Performance and Accountability Amendment Act 2014 and the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 are available from the ComLaw website.

Karin Fisher
Group Manager, Ethics
Australian Public Service Commission
26 June 2014

Attachment A

Amendments to the APS Code of Conduct

Provisions until 30 June 2014 and from 1 July 2014

Provisions until 30 June 2014

Provisions from 1 July 2014

Subsection 13(7)
An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment

Subsection 13(7)
An APS employee must:
(a) take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee's APS employment; and
(b) disclose details of any material personal interest of the employee in connection with the employee's APS employment

Subsection 13(8)
An APS employee must use Commonwealth resources in a proper manner

Subsection 13(8)
An APS employee must use Commonwealth resources in a proper manner and for a proper purpose

Subsection 13(10)
An APS employee must not make improper use of:
(a) inside information; or
(b) the employee's duties, status, power or authority;
in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.

Subsection 13(10)
An APS employee must not improperly use inside information or the employee's duties, status, power or authority:
(a) to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
(b) to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person.

Asset ID: #61937

About the Commission

The Australian Public Service Commission (APSC) is a central agency within the Prime Minister and Cabinet portfolio. The Commission supports two statutory office holders: the Australian Public Service Commissioner—who is also agency head—and the Merit Protection Commissioner. Their functions are set out in sections 41(1) and 50(1), respectively, of the Public Service Act 1999.